INTRODUCTION

"Great things are not done by impulse, but by a series of small things brought together."

- Vincent Van Gogh

This renowned painter is believed to have written this in a letter exchanged between himself and his younger brother Theodorus Van Gogh and has found meaning in every facet of life. In the Indian regulatory context, the Central Government is seeking to achieve greatness by overhauling Indian laws to unlock the immense potential of a digital India.

In furtherance of this ambition and with the intention of mitigating user harm and safeguarding consumer interests, the government is highlighting issues such as mandating anti-tobacco disclaimers on streaming platforms, requiring game developers to implement responsible gaming measures for their users, but at the same time protecting our freedom of speech and expression by preventing states from arbitrarily banning 'The Kerala Story'. Such small steps are leading India to a greater future by demonstrating a discernible balance between a forward-looking perspective and a measured outlook. 

In this edition of The Recap, we take note of the developments that took place during this time and acknowledge the impact it has exhibited. Echoing the sentiment, we explore the captivating stories, intriguing controversies, and visionary initiatives that have unfolded throughout May 2023, shaping the future of the gaming, media and entertainment sector and bring to you the thirteenth edition of The Recap.

MEDIA AND ENTERTAINMENT

OTT platforms to carry anti-tobacco disclaimers

Now it is mandatory for Over-the-top ("OTT") streaming platforms to display anti-tobacco warnings as seen in movies screened in theatres and TV, as per a Union Health Ministry ("Ministry") notification dated on May 31, 2023 ("Notification"), which has amended the rules under the Cigarettes and Other Tobacco Products Act, 2004 ("COTPA"). As per the Notification, it is now required for streaming services to display health warnings during scenes depicting smoking by actors. Notably, web series and films featuring smoking scenes are required to show disclaimers and health warnings not only at the beginning but also during relevant scenes.

The decision was followed by extensive discussions within the Ministry, involving the Ministry of Information and Broadcasting, industry representatives, and other stakeholders. Previously, COTPA mandated that all films and programs shown in theatres and on television channels must display anti-tobacco health spots of at least 30 seconds in duration at the beginning and middle of the content. Films are also required to include audio-visual disclaimers regarding the adverse effects of tobacco use. Furthermore, an anti-tobacco health warning must be prominently displayed as a static message at the bottom of the screen when tobacco products are shown or used in films and television programs.

While similar rules were strictly followed in films screened in theatres and by cable or network television broadcasters, concerns were raised about the lack of regulation for OTT platforms. Complaints suggested that the absence of such regulations might undermine the objectives of COTPA.

You can access the Notification here.

You can read more about this development as reported in The Hindu here.

Delhi High Court stands firm: Rejects omnibus declaration in copyright infringement battle

In the case of Ten Events & Entertainment vs Novex Communications and others, the Delhi High Court rejected the plaintiff's request for an omnibus declaration stating that it is not necessary to obtain licenses or no objection certificates ("NOC") from copyright holders for playing their recordings in wedding ceremonies. The plaintiff, Ten Events & Entertainment providing event management servicesinstituted the suit under Section 601 of the Copyright Act, 1957 ("Copyright Act") read with Section 342 of the Specific Relief Act, 1963.

As an event management enterprise, the plaintiff organises, among other things, wedding ceremonies in luxury hotels. In the course of such ceremonies, songs are played by disc jockeys (DJs), to accompany the festivities. The hotels had written to the plaintiff, requiring the plaintiff to obtain a license from the defendants, who claim to hold copyright in these songs. These communications, from the hotels to the plaintiff were alleged to have been issued on the basis of communications from the defendants to the hotels, whereby the defendants had called upon the hotels to ensure that any person, playing songs in which, they hold copyright, obtains a license or a NOC from them before doing so.

In this regard, the Delhi High Court agreed with the submission of the defendants that an event management company such as the plaintiff, would not fall either within sub clause (i) or (ii) of Section 51(a) of the Copyright Act.3 In this regard, the Delhi High Court further held that the plaintiff does not undertake any act in relation to the recordings in which the defendants hold copyright, nor is the plaintiff the owner or person in control of the venue where these activities take place. The plaintiff could not, therefore, in any event, be a "copyright infringer" within the meaning of Section 51 of the Copyright Act. Not being the alleged copyright infringer, and not being the person to whom Novex addressed the notices, Ten Events cannot be regarded as a person aggrieved within the meaning of Section 60 of the Copyright Act, so as to be entitled to institute the present suit against Novex.

What, in essence, Ten Events was seeking to obtain is an advance ruling to the effect that it can, at all venues and in perpetuity, during wedding ceremonies organised by them– irrespective of its nature – play recordings of songs in which Novex holds copyright and communicate the same to the public, without obtaining any NOC or license. The law does not permit such an advance ruling to be sought.

Thus, noting that section 52(1)(za)4 cannot justify the omnibus nature of the prayers sought in the suit and interim relief as sought can't be granted, the Delhi High Court dismissed the plaintiff's application for seeking such an omnibus declaration against Novex.

You can access a copy of the Delhi High Court order here.

Gujarat Titans' Melody Mayhem: Copyright Infringement Controversy in IPL 2023

In a recent development, a controversy has erupted involving the Gujarat Titans ("GT"), an Indian Premier League ("IPL") team, which revolves copyright infringement of two famous Gujrati songs which were played during their matches. 'Helo Maro Sambhalo Ranuja Na Raja' and 'Mara Palav No Chedlo Na Aao Chogala Re' were the songs in dispute and at the core of the controversy. 

Recorded Music Performance Limited ("RMPL"), a registered copyright society, had filed a copyright infringement suit on May 20, 2023 after the two songs were played at GTs' matches held at the Narendra Modi cricket stadium in Motera. The petition focused on worries that the defendants are in a continuous cause of action to as they are abusing the plaintiff's copyrights for financial advantage and avoiding their need to seek licences from the plaintiff society.

The GT franchise gave an undertaking before a Commercial Court in Gandhinagar and swore under oath in front of the judge that they would not play the music during the Qualifier 2 and championship match of the IPL.

You can read more about this development as reported in Times of India here.

The story of 'The Kerala Story'

The Kerala High Court refused to stay the release of the controversial film 'The Kerala Story' ("Movie"), which hit theatres on May 05, 2023. Refusing to stay the release of the film while considering a batch of petitions, the Kerala High Court observed that the Movie only says it is 'inspired by true events'. It was also noted that the Central Board of Film Certification ("CBFC") has certified the Movie for public viewing. During the hearing the trailer was reviewed, and it was opined that there was nothing offensive to any particular community and that the producers have added a disclaimer that the Movie is a fictionalised version of events. Subsequently, the Madras High Court also rejected a public interest litigation ("PIL") petition seeking a ban on the Movie. Later, the Supreme Court also refused to interfere with the release of Movie or pass any orders for urgent listing of the case before the Kerala High Court. 

Post release of the Movie, Supreme Court on May 12, 2023 issued notice to stay the ban in the State of West Bengal and State of Tamil Nadu on a writ petition filed by the makers of the Movie challenging the decision of the State of West Bengal to ban the Movie. The makers also alleged that the Movie was facing a shadow ban in State of Tamil Nadu and sought protection for screening the Movie in the southern state.

In this regard, senior advocate Harish Salve, appearing for the producer of the Movie, said that on the date of the release of the Movie, the Chief Minister of West Bengal made a statement against it, stating that it is against a community and the exhibition can cause law and order problems. The State of West Bengal banned the Movie after it ran for three days without any problems. Further, in State of Tamil Nadu, the film faced a "de facto ban", as the exhibitors have withdrawn the movie after threats.

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